The clarion., 1887-04-13

that the appellants dealt Win sne nus
band in ignorance OF the fact that the
farm was owned by the wife, giving hlm
credit on the faith of his usual prompt
payments of his accounts, which had year
after year been paid by the shipments OF
the crops of cotton raised ON the wlies
farm.
On the trial in the court below the
jury were instructed that the plalntlii
was entitled to recover if they had ex-
tended the credit TO the wife or TO the
husband acting as her agent; that the
wife was not liable for family supplies
and only for such plantation supplies as
| were actually used on the farm; that II
| the husband farmed with his own team
on his wife's land, received and con,
trolled the crops raised as his own, and
was physician III large practice, the
presumption of law would be that the
accounts were made on his own credit,
and that the burden of proof was on the
plaintiffs to show that the credit was
| given to him as the agent of the wlte,
with her knowledge and consent SeY-
eral other instructions were given, but
I the substance of those as stated above
indicate upon what theory the case pro
ceeded.
The decision of the questions involved
rests upon a construction OF section Il1I
of the code of 1880, which is as follows; =;
at shall not be lawful for the husband
TO rent the wife's plantation, houses,
| horses, mules, wagons, carts or other
| implements, and with them or any OF
| her means, TO operate and carry on bus
| mess in his own name or on his own ac-
| count, but all the business done with
the means of the wife by the husband
shall be held to be on her account
and for her use, ana by her husband as
her agent and manager in business, as 20
all persons dealing with him without
notice, unless the contract between the
husband and wife which changes this
| relation, shall be evidenced by writing,
subscribed by them, duly acknowledged,
and filed with the chancery clerk of the
county where such business may be
done, to be recorded as other instru
ments are recorded therein"
The evil intended to be remedied by
| this section of the code, was one which
was becoming of frequent recurrence, as
shown by the results of litigation in this
State. Husbands of the owners of sep
arate estates would devote their atten-
| ton to the business carried on with the
/ property of the wife, but if the business
proved to be Improbable, the wife
would escape liability for debts con
tracted in the business by the easy de-
| vice of setting up a secret arrangement
or contract by the terms of which il
| would be shown that the property had
been leased or hired to the husband
and the business transacted as his own
and for his exclusive benefit. la such
cases judgments against the husband
| would be fruitless, and creditors who
had dealt in good faith with him, pe-
| lieying him to have been the agent of
the wife, were defrauded, by finding the
property to be in one person and the
risks incident to the business to which
it had been devoted shifted to an in
solvent by bed-chamber arrangements,
which, whether real or simulated, it was
impossible to disprove. Ordinarily the
statute will find operation in that class
of cases which called it into existence.
viz: cases in which credit has been ex-
tended to the husband as agent of the
wife. But the case now presented re-
quires decision upon wholly differ
ent state of facts, and the inquiry is
whether one who has dealt with the hus-
band in ignorance of the wife's title to
the property used, but believing him to
be the owner, can charge the wife as an
undiselosed principal.
The facts III this case are clear and
undisputed. By an arrangement be
tween the husband and wife, not re-
corded as required by law and unknown
to the creditor, the husband who was
the owner of all the personal property
used in the cultivation of crops, carried
on the business of farming upon the
wife's land in his own name and for his
own exclusive benefit; the plaintiffs ex-
tended credit to him individually, aud
not as the representative of the wife.
believing him to be, as under the con
tract with his wife he was, the owner of |
the crops grown on the land, but also |
believing him to be, as he was not the |
owner of the farm.
Three questions are presented:
l. Is the wife liable for the debts con |
tracted by the husband?
2 If this be resolved in the afiirma |
tive, to what extent does her responsible |
ity extend?
3. On whom rests the burden of proof |
to show whether the goods we're bought
for the wife, or that she obtained the |
benefit of them?
The hrst inquiry we answer affiIma
lively. The statute, by its own power,
without the assent of the wife, and, it
may be, against her consent, declares
that unless by written, acknowledged
and recorded contract between husband
and wife, that relationship be changed.
the husband transacting business with
the means of the wife as to all persons
dealing with him without notice, shall
be treated and held as her agent and
in business. The "notice"
meant by the statute is notice of that
contract by which the relationship Is
and the record of which is
provided to be made in the county where
such business Iaay be done. Ii is inn
that the wife's title to the
used in the business appears
by the record of her deed; that is A
matter foreign to the subject OF this leg.
islation. The property right of the wife.
which is disclosed by such record is
the foundation of the right of the cred
ltor TO charge her with the payment of
his debt. He claims according to the
notice given by snch record, and not
against it. Nor is it sufficient that the
creditor believed the husband to be en-
2aged In business for himself. and ;hat
N tact he was so engaged, unless it an
pears that such belief arose from 2
knowledge of facts sufficient to charge
The creditor with notice of the contract
between husband and wife, or to deyolve
on him the duty of prosecuting inquiry
10 learn the truth by fair and necessary
implication. The statute secures to cred
tors the right to hold the wife to an
'wer for all debts contracted in a busj-
ness conducted by her husband with her
means, in all cases in which there is not
/ recorded contract or notice to the
creditor. Ii the credit is given to the
husband as her agent she is chargable
Is known principal; if it be extended
% the husband In ignorance of the facts
'ne is liable on discovery as an undis-
closed principal.
We appreciate the difficulty which
must arise, when case shall be nre-
ented calling for that investigation. in
determining what proportion of tb4
means of the wife must be invested IL
he business to fix upon her responsible,
ty for the debts contracted. II 4 onIv
necessary now to say, that such liability
Exists where she is the owner of tbe
arm upon which the crops are grown
although the husband who conducts the ,
business, either in her name or his own.
5 the sole owner of all the teams and
Implements used in its cultivation.
But the common law obligation of the
husband to provide supplies for his fam ,
iy is not changed or modified by the4 i
tatnte, which has relation only to the I
iebts contracted in the business in ,
which the wife's property is employed: {
lor>is the wife's estate to be subjected to
he payment of debts contracted by the